BILL ANALYSIS                                                                                                                                                                                                    



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          Date of Hearing:  April 22, 2015


                       ASSEMBLY COMMITTEE ON LOCAL GOVERNMENT


                              Brian Maienschein, Chair


          AB 36  
          (Campos) - As Introduced December 1, 2014


          SUBJECT:  Local government:  federal surplus property.


          SUMMARY:  Prohibits local agencies from receiving surplus  
          military equipment from the federal government, unless the  
          acquisition is approved at a meeting held pursuant to the Ralph  
          M. Brown Act.  Specifically, this bill:  


          1)Expands California's Federal Surplus Property Acquisition Law  
            of 1945 (Federal Surplus Property Law) by prohibiting a local  
            agency from receiving surplus military equipment pursuant to  
            Section 2576a of Title 10 the United States Code (1033  
            Program), unless the legislative body of the local agency  
            approves the acquisition at a meeting held pursuant to the  
            Ralph M. Brown Act (Brown Act).



          2)Expands the definition of "local agency" in the Federal  
            Surplus Property Law to include county, city, whether general  
            law or chartered, city and county, town, school district,  
            municipal corporation, district, political subdivision, or any  
            board, commission, or agency thereof, or other local public  
            agency.









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          3)Adds a definition of "legislative body" to the Federal Surplus  
            Property Law and defines it to have the same meaning as the  
            term is defined in the Brown Act.


          4)Finds and declares that this bill constitutes a matter of  
            statewide concern, that it shall apply to charter cities and  
            charter counties, and that its provisions shall supersede any  
            inconsistent provisions in the charter of any city, county, or  
            city and county.





          5)Provides that, if the Commission on State Mandates determines  
            that this bill contains costs mandated by the state,  
            reimbursement to local agencies and school districts for those  
            costs shall be made pursuant to current law governing state  
            mandated local costs.


          EXISTING LAW:  


          1)Requires, pursuant to the Brown Act, that all meetings of a  
            legislative body, as defined, of a local agency be open and  
            public and all persons permitted to attend, unless a closed  
            session is authorized.


          2)Defines "legislative body" to mean:


             a)   The governing body of a local agency or any other local  
               body created by state or federal statute;










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             b)   A commission, committee, board, or other body of a local  
               agency, whether permanent or temporary, decision-making or  
               advisory, created by charter, ordinance, resolution, or  
               formal action of a legislative body.  However, advisory  
               committees, composed solely of the members of the  
               legislative body that are less than a quorum of the  
               legislative body are not legislative bodies, except that  
               standing committees of a legislative body, irrespective of  
               their composition, which have a continuing subject matter  
               jurisdiction, or a meeting schedule fixed by charter,  
               ordinance, resolution, or formal action of a legislative  
               body are legislative bodies for purposes of the Brown Act;



             c)   A board, commission, committee, or other multimember  
               body that governs a private corporation, limited liability  
               company, or other entity that either:



               i)     Is created by the elected legislative body in order  
                 to exercise authority that may lawfully be delegated by  
                 the elected governing body to a private corporation,  
                 limited liability company, or other entity; or,



               ii)    Receives funds from a local agency and the  
                 membership of whose governing body includes a member of  
                 the legislative body of the local agency appointed to  
                 that governing body as a full voting member by the  
                 legislative body of the local agency.



          3)Authorizes the Department of Defense (DOD), pursuant to  
            Section 2576a of Title 10 the United States Code, to transfer  








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            surplus personal property, including arms and ammunition, to  
            federal or state agencies for use in law enforcement  
            activities, subject to specified conditions, at no cost to the  
            acquiring agency.  This program is commonly referred to as the  
            1033 Program.


          4)Allows, pursuant to California's Federal Surplus Property Law,  
            a local agency, as defined, to acquire surplus federal  
            property without regard to any law that requires posting of  
            notices or advertising for bids, inviting or receiving bids,  
            delivery of purchases before payment, or that prevents the  
            local agency from bidding on federal surplus property. 


          5)Defines "local agency" as used in California's Federal Surplus  
            Property Law to mean county, city, municipal corporation, or  
            public district.


          FISCAL EFFECT:  This bill is keyed fiscal and contains a  
          state-mandated local program.


          COMMENTS:  


          1)Bill Summary.  This bill updates California's Federal Surplus  
            Property Law, which was enacted in 1945, by prohibiting local  
            agencies from receiving surplus military equipment from the  
            1033 Program, unless the acquisition is approved at a meeting  
            held pursuant to the Brown Act.  



            This bill updates the Federal Surplus Property Law's  
            definition of "local agency" to include a county, city,  
            whether general law or chartered, city and county, town,  
            school district, municipal corporation, district, political  








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            subdivision, or any board, commission, or agency thereof, or  
            other local public agency.  All of these entities would be  
            subject to the law with passage of this bill.  





            This bill also declares that it constitutes a matter of  
            statewide concern, that it shall apply to charter cities and  
            charter counties, and that its provisions shall supersede any  
            inconsistent provisions in the charter of any city, county, or  
            city and county.  This bill is sponsored by the Author.





          2)Author's Statement.  According to the author, "Due to recent  
            events of police brutality, distrust between law enforcement  
            and many of our communities remains at an all-time high.   
            Further exacerbating the issue is the recent militarization of  
            law enforcement agencies and a movement away from community  
            policing across the nation.



            "Amid a national debate over the militarization of police, the  
            San Jose Police Department acquired a 15-ton armored vehicle  
            earlier this year from the military surplus program.  After  
            receiving community input that the armored vehicle was  
            damaging the trust that a decade 


            of community policing had created, the San Jose Police  
            Department decided to return the vehicle.  In a separate case,  
            in Ferguson, Missouri, the mine-resistant, ambush-protected  
            troop transport, or Mine-Resistant Ambush Protected Vehicle  
            (MRAP), became a focus for debate after this military surplus  








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            vehicle and other military equipment were used by local law  
            enforcement to respond to civil unrest over the police killing  
            of unarmed teenager Michael Brown.



            "These are only a few cases where the public felt threatened  
            by military equipment in their communities.  In both cases,  
            the communities involved did not have the opportunity to weigh  
            in before the military equipment was acquired.  These  
            situations hurt our most underserved communities by  
            exacerbating their relationship with the police and  
            government.  





            "Unilateral decisions by law enforcement agencies to acquire  
            military equipment provide little or no opportunity for  
            community input.  Most law enforcement agencies are not  
            required to engage in a public process that involves public  
            debate about equipment purchases.  This results in an  
            inherently skewed decision-making process about what someone's  
            community will look like.  AB 36 helps address this issue by  
            prohibiting a public safety agency from receiving and buying  
            surplus military equipment unless the legislative body of the  
            local agency votes to approve the purchase at a public  
            meeting."





          3)Background.  While the militarization of local police  
            departments has been in news headlines for many months,  
            starting with the unrest in Ferguson, Missouri, it is not new.  
             It has been researched and written about for at least the  
            past two decades, having its roots in the law enforcement  








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            response to the social unrest of the 1960s, and the  
            development of Special Weapons and Tactics (SWAT) units.   
            There has been a dramatic expansion in the use of SWAT teams  
            since then, with a significant increase in their use for drug  
            raids, as noted in an article released by the U.S. Department  
            of Justice in December 2013 entitled "Will the Growing  
            Militarization of Our Police Doom Community Policing?"  The  
            article also cites the use of battle dress uniforms and stress  
            training as contributors to the increased militarization of  
            local police practices.  



            The ACLU released a comprehensive report in June entitled,  
            "War Comes Home: The Excessive Militarization of American  
            Policing," which recommends that state legislatures and  
            municipalities "impose meaningful restraints on the use of  
            SWAT" and notes that there needs to be greater documentation,  
            transparency, and accountability on how the police are  
            spending tax dollars.  The report also includes a laundry list  
            of recommendations for local agencies, primarily directed at  
            best practices in the use of SWAT teams.


           


          4)1033 Program.  The DOD 1033 Program allows surplus U.S.  
            military equipment to be transferred to municipal police  
            departments free of charge.  The 1033 Program is named for the  
            section of the National Defense Authorization Act of 1997 that  
            granted permanent authority to the Secretary of Defense to  
            transfer defense material to federal and state agencies for  
            use in law enforcement, particularly those associated with  
            counter-drug and counter-terrorism activities.



            The 1033 Program is reported to have transferred $5 billion in  








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            military equipment to police departments across the country.   
            According to the Congressional Research Service, 1,000 law  
            enforcement agencies are registered nationwide and 8,000 are  
            currently using property provided through the program,  
            including a number of California cities.  News reports state  
            the cities of Davis and San Jose have recently decided to  
            return armored vehicles they received from the federal  
            government, and other cities have been reported to have such  
            equipment at their disposal.





            According to the Defense Logistics Agency (DLA), which  
            administers the 1033 Program, "For states to participate in  
            the program, they must each set up a business relationship  
            with DLA through a Memorandum of Agreement (MOA).  Each  
            participating state's governor is required to appoint a State  
            Coordinator to ensure the program is used correctly by the  
            participating law enforcement agencies.  The State  
            Coordinators are expected to maintain property accountability  
            records and to investigate any alleged misuse of property, and  
            in certain cases, to report violations of the Memorandum of  
            Agreement to DLA.  State Coordinators are aggressive in  
            suspending law enforcement agencies who abuse the program.





            "Additionally, DLA has a compliance review program.  The  
            program's objective is to have (DLA's) Law Enforcement Support  
            Office staff visit each state coordinator and assist him or  
            her in ensuring that property accountability records are  
            properly maintained, minimizing the potential for fraud, waste  
            and abuse."










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          5)Office of Emergency Services.  The Governor's Office of  
            Emergency Services (OES) administers the 1033 Program for the  
            state.  According to the OES website, "California law  
            enforcement agencies (LEAs) that wish to acquire and/or retain  
            1033 Program excess property must be certified and currently  
            authorized to use the 1033 Program.  Certification paperwork  
            is required annually and whenever a participating agency's  
            Chief Executive Official Changes.  Authorization to use the  
            1033 Excess Property Program is valid for one year unless the  
            Chief Executive Officer of the LEA changes.



            "All CA Law Enforcement Agencies that have acquired program  
            equipment must have at least one person registered and  
            actively maintaining their agency's inventory in the Federal  
            Excess Property Management Information System (LESO FEPMIS) as  
            part of their property accounting system for all program  
            related equipment."





            OES maintains an inventory list of tracked 1033 equipment for  
            California agencies and entities.  It was created by OES from  
            the (federal) Law Enforcement Support Office (LESO) database  
            dated June 25, 2014.  The list is a snapshot in time and may  
            not reflect more recent transactions within the LESO's  
            dynamically changing database.  OES auditors pull from this  
            database to form their lists for individual agency  
            accountability checks throughout the year.  The list is the  
            only inventory OES retains outside of the LESO database.   
            There are no historical inventories retained by OES.   
            (Unfortunately, at the time this analysis was drafted, this  
            list was not accessible on the OES website.)








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            LEAs also purchase equipment with their own money and/or with  
            federal grants, in addition to equipment acquired through the  
            1033 Program. 





          6)Federal Legislation. On September 16, Rep. Hank Johnson (D-GA)  
            and Rep. Raul Labrador (R-ID) introduced the Stop Militarizing  
            Law Enforcement Act of 2014 (H.R. 5478), which would have  
            placed restrictions and transparency measures on the 1033  
            Program.  The bill would have:
           


             a)   Prevented transfers of equipment inappropriate for local  
               policing, such as high-caliber weapons, long-range acoustic  
               devices, grenade launchers, armed drones, armored vehicles,  
               and grenades or similar explosives;



             b)   Ended incentives to use equipment in circumstances when  
               the use is unnecessary. Under the 1033 Program, local  
               police are required to use the equipment within a year,  
               incentivizing towns to use it in inappropriate  
               circumstances;



             c)   Required that recipients certify that they can account  
               for all equipment.  In 2012, the weapons portion of the  
               1033 Program was temporarily suspended after DOD found that  








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               a local sheriff had gifted out army-surplus Humvees and  
               other supplies.  This bill would have prohibited re-gifting  
               and required recipients to account for all equipment  
               received from DOD; and,



             d)   Added requirements to enforce tracking mechanisms that  
               keep up with and control transfers of the equipment,  
               implement policies ensuring that police agencies can't  
               surplus the equipment for resale, and define drones more  
               clearly.
           


            This federal measure was not enacted.





          7)Related Legislation.  SB 242 (Monning) requires a school  
            district's police department to obtain approval from its  
            governing board prior to receiving federal surplus military  
            equipment.  SB 242 passed the Senate Education Committee on a  
            7-1 vote on March 25, 2015, and is pending in the Senate  
            Public Safety Committee.



          8)State Mandate.  This bill is keyed a state mandate, which  
            means the state could be required to reimburse local agencies  
            and school districts for implementing the bill's provisions,  
            if the Commission on State Mandates determines that the bill  
            contains costs mandated by the state.  



          9)Committee Amendment.  The author's intent for this bill is to  








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            increase transparency and public involvement when local  
            agencies deliberate the acquisition of 1033 equipment.  In  
            keeping with that objective, the Committee may wish to specify  
            that a local agency must approve such an acquisition at a  
            regular meeting held pursuant to the Brown Act.



          10)Arguments in Support.  None on file.



          11)Arguments in Opposition.  The League of California Cities, in  
            opposition, states, "The League of Cities opposes this measure  
            as an unjustified incursion upon municipal sovereignty.  Under  
            current law, local agencies are fully within their  
            constitutional police power in deciding whether to acquire  
            military equipment from the Department of Defense pursuant to  
            the 1033 Program, and under what circumstances.  Some cities  
            have voluntarily made the decision to acquire equipment such  
            as an MRAP (an armored truck used by the U.S. Army) via a vote  
            of the city council.  But due to the security implications,  
            jurisdictions can and should decide for themselves on the  
            circumstances under which they make such decisions, including  
            whether to observe the Brown Act.



            "(L)ocal jurisdictions are in the best position to determine  
            the method by which surplus equipment is acquired.  In some  
            instances, Brown Act compliance may be desirable to facilitate  
            agreement by the community being served; in others, a vote in  
            closed session of the local governing body may be the most  
            prudent course; and in still other instances, an executive  
            decision by a mayor, city manager or police chief, or some  
            combination thereof, may be most appropriate.  In any case,  
            local flexibility should be preserved, and municipal  
            sovereignty should not be pre-empted."









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          REGISTERED SUPPORT / OPPOSITION:




          Support


          None on file




          Opposition


          California Police Chiefs Association


          League of California Cities







          Analysis Prepared by:Angela Mapp / L. GOV. / (916) 319-3958















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